Linda Chambara v. Loretta Lynch , 669 F. App'x 278 ( 2016 )


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  •      Case: 15-60578      Document: 00513716770         Page: 1    Date Filed: 10/13/2016
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 15-60578                                    FILED
    Summary Calendar                           October 13, 2016
    Lyle W. Cayce
    Clerk
    LINDA TAURAI CHAMBARA,
    Petitioner
    v.
    LORETTA LYNCH, U. S. ATTORNEY GENERAL,
    Respondent
    Petition for Review of an Order of the
    Board of Immigration Appeals
    BIA No. A098 710 923
    Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
    PER CURIAM: *
    Linda Taurai Chambara, a native and citizen of Zimbabwe, petitions for
    review of the decision of the Board of Immigration Appeals upholding the
    denial by the immigration judge of her application seeking withholding of
    removal and protection under the Convention Against Torture.                                The
    immigration judge and the Board, each citing numerous inconsistencies and
    omissions in Chambara’s two asylum applications and in her testimony at
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 15-60578    Document: 00513716770      Page: 2     Date Filed: 10/13/2016
    No. 15-60578
    hearings, determined that she was not credible and that her claims for relief
    therefore failed.
    Because the Board approved of and relied upon the immigration judge’s
    decision, we may review the decisions of both. See Wang v. Holder, 
    569 F.3d 531
    , 536 (5th Cir. 2009). Our review of rulings of law is de novo, and we review
    findings of fact for substantial evidence. Zhu v. Gonzales, 
    493 F.3d 588
    , 594
    (5th Cir. 2007). An immigration court’s conclusion that an alien is not credible
    is a factual finding subject to review for substantial evidence. Chun v. INS, 
    40 F.3d 76
    , 78–79 (5th Cir. 1994).
    Chambara argues that the Board’s adverse credibility determination is
    not supported by substantial evidence because some of the inconsistencies
    noted did not go to the heart of her claim concerning the events that were the
    basis of her motion to reopen due to changed country conditions.               This
    contention fails, as under the REAL ID Act, a court can rely on any
    inconsistency or omission to make an adverse credibility determination so long
    as the totality of the circumstances shows the applicant is not credible. See
    Wang, 
    569 F.3d at
    538–39.
    To the extent Chambara argues the immigration judge erred by failing
    to take into account the prejudice caused by her former attorney, who filed her
    first application for relief, her assertion is not supported by the record. Both
    the immigration judge and the Board of Immigration Appeals considered
    Chambara’s contention that she did not prepare the account of events set forth
    in the application, but determined that Chambara had eventually signed the
    application, thereby attesting to its truth. An applicant’s signature on an
    asylum application “establishes a presumption that the applicant is aware of
    the contents of the application.” 
    8 C.F.R. § 1208.3
    (c)(2).
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    Case: 15-60578    Document: 00513716770       Page: 3   Date Filed: 10/13/2016
    No. 15-60578
    Accordingly, Chambara fails to establish that no reasonable fact finder
    could have made an adverse credibility determination in this matter. See
    Wang, 
    569 F.3d at
    538–39. Absent credible evidence, Chambara failed to meet
    her burden for withholding of removal. See Zhang v. Gonzales, 
    432 F.3d 339
    ,
    345 (5th Cir. 2005). Further, Chambara’s claim for protection under the
    Convention Against Torture was based on the same factual assertions as her
    claim for withholding of removal. Therefore, to the extent that Chambara
    challenges the denial of protection under the Convention, her claim fails on the
    basis of the adverse credibility determination discussed above. See Efe v.
    Ashcroft, 
    293 F.3d 899
    , 907–08 (5th Cir. 2002).
    Chambara also claims that the Board of Immigration Appeals violated
    her Fifth Amendment rights. Aliens in immigration proceedings are entitled
    to due process under the the Fifth Amendment. See Toscano-Gil v. Trominski,
    
    210 F.3d 470
    , 473 (5th Cir. 2000). To obtain relief, the alien must establish
    that the due process violation resulted in substantial prejudice. 
    Id.
    Here, although Chambara’s brief provides the legal framework for a
    procedural due process claim, she fails to indicate how the Board of
    Immigration Appeals violated her due process rights in this matter, or how its
    actions caused substantial prejudice, aside from a conclusory and unsupported
    statement that she was clearly prejudiced by the court’s actions. Because she
    has not properly briefed the issue, Chambara has waived it. See United States
    v. Williams, 
    400 F.3d 277
    , 283 (5th Cir. 2005).
    Chambara’s petition for review is DENIED, the Attorney General’s
    motion for summary affirmance is GRANTED, and the alternative request for
    additional time to file a brief is DENIED.
    3